Monday, January 12, 2009

Some background: The following facts, outlined by the Court of Appeals, are taken from identical complaints filed against three defendants, Anthony Welda, Victoria Trappe, and Timothy Wagner. The defendants were charged with disorderly conduct and hate crime enhancer after Janesville police had been dispatched to investigate a reported disturbance where 10 to 15 people had gathered in Trappe’s front yard.

Trappe told police the disturbance was about “niggers” on her property without her permission and that that the officers needed to “get these niggers off my property.” The officer told Trappe to watch her language and to go back onto her porch, which she did. As she was walking back to her porch, she continued to yell the word “niggers” and stated that someone was going to end up “getting taken care of.”

Two African American men had approached Trappe’s home after being told by two child relatives that two men outside at Trappe’s residence had called them “niggers.” One of the defendants, Welda, told police that he, Wagner and others had been talking about the “niggers” in Beloit when two children, both African American, overheard them.

Welda stated that during the course of the confrontation with the two African-American males, Wagner retrieved a confederate flag from his truck and waved it around them.

A police officer told Wagner that “niggers” was a word he should not use, to which Wagner replied that is “bullshit,” and that he will use the word any time he wants.

After being cited, Trappe, Wagner and Welda successfully moved the circuit court to dismiss the hate-crime enhancer. Trappe and Wagner had argued there were insufficient facts contained in the complaint to support the application of the hate crime penalty enhancer.

Welda argued that the charge of disorderly conduct and the increased penalty under the hate crimes law were multiplicitous, in violation of double jeopardy provisions in the state and federal constitutions. The circuit court agreed.

The Court of Appeals reversed, noting the penalty enhancer required proof that the defendants "intentionally selected the person against whom the crime . . . is committed . . . in whole or in part because of the actor's belief or perception regarding the race . . . of that person. . . ." § 939.645(1)(b), Stats.

The facts of the case support the allegation that Wagner and Trappe used the term “nigger” because of the race of people targeted by their comments, the Court of Appeals found. In addition, the Court of Appeals concluded Welda failed to show that the Legislature had not intended to provide for cumulative punishments under the hate crime statute.

Welda petitioned for review by the Supreme Court, which is expected to consider three issues: - If Wisconsin's hate crime law permits additional punishment in a speech-only disorderly conduct case when the speech itself forms the basis for the penalty enhancer? - Whether Wisconsin’s hate crime law, § 939.645(1)(b), Stats., is unconstitutional as applied to the facts of this case. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)?- Whether this is in fact a “speech only” disorderly conduct case or whether the facts would support a disorderly conduct charge based on the defendant’s actions in addition to his speech?From Rock County.